State v. Holloway, 19847
| Decision Date | 02 July 1974 |
| Docket Number | No. 19847,19847 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Richard Kermit HOLLOWAY, and Joe Holloway, Bondsman-Appellant. |
Adam Fisher, Jr., of Fisher & Black, Greenville, for bondsman-appellant.
Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Robert M. Ariail, Columbia, and Sol. Thomas W. Greene, Greenville, for respondent.
On May 13, 1973, Richard Kermit Holloway, was arrested under a warrant charging him with violations of the South Carolina Drug Act, and was released after signing a bond, in the amount of $4200.00, to appear at the next term of the Court of General Sessions for Greenville County. The appellant, Joe Holloway, signed the bond as surety. The accused failed to appear for trial, and pursuant to an order to show cause issued on November 14, 1973, directed to him and appellant, a hearing was held, and the forfeiture of the recognizance was confirmed; but the forfeiture was remitted in the amount of $2100.00, with judgment being entered for the balance of $2100.00. Only appellant-surety has appealed from the foregoing judgment.
The position of appellant in the lower court was that the entire forfeiture should be remitted; and the sole question to be decided is whether the trial judge erred in refusing to grant a complete remission of the forfeiture instead of only one-half thereof.
The procedure for estreatment of bonds in criminal cases is controlled by Section 17--311, 1962 Code of Laws, State v. Bailey, 248 S.C. 438, 151 S.E.2d 87.
Section 17--311 provides that, whenever a recognizance 'shall become forfeited by noncompliance with the condition thereof,' all parties bound by the recognizance shall be summoned to show cause 'why judgment should not be confirmed against him.' The required summons or rule was issued in this case. Appellant made an oral return thereto in which he asked that the forfeiture of the recognizance be remitted, but did not challenge the factual allegations of the summons that the accused had failed to appear in court as required by the recognizance. There was no attempt to explain the failure of the defendant to appear. Therefore, the fact that the condition of the recognizance had been breached and was thereby forfeited is not in issue.
Section 17--312, deals with remission of bond forfeitures and provides:
'If any person shall forfeit a recognizance from ignorance or unavoidable impediment and not from wilful default, the court of sessions may, on affidavit stating the excuse or cause thereof, remit the whole or any part of the forfeiture as may be deemed reasonable.'
The foregoing section places the exercise of the power to grant relief from bond forfeitures within the discretion of the court; and the exercise of that discretion by the trial judge will not be set aside unless it is made to appear that it was abused. State v. Edens, 88 S.C. 302, 70 S.E. 609.
Under Section 17--312, relief from the bond forfeiture is permitted where it is made to appear By affidavit that the forfeiture resulted 'from ignorance or unavoidable impediment and not from wilful default'; and the burden of establishing justification for remission of such forfeiture rests upon the applicant. The affidavit required by statute was not filed by appellant in this case, and the appeal might properly be disposed of on the basis of such failure. The fact that we dispose of this appeal on the merits, in the absence of compliance with the statute, is not to be considered a precedent as to the necessity for filing the statutory affidavit.
Although the accused did not appear for several terms of court, appellant presented him to the court at the hearing on the order to show cause in this matter. The claim for remission of the bond forfeiture rests upon (1) the fact that the accused was surrendered at the hearing; (2) appellant's assertion that he was ignorant of the fact that accused had not appeared at each term of court as required; and (3) the contention that the State was not prejudiced...
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